Complex Litigation: Primary Jurisdiction

Abstract

Commentary and analysis of the judicially-created doctrine of “primary jurisdiction” in class action litigation under Federal Rule of Civil Procedure 23. Defense attorneys typically raise the primary jurisdiction doctrine on a motion to dismiss a class action, a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted, or a challenge to certification under Rule 23(b)(3), for a lack of superiority. In invoking the primary jurisdiction doctrine, defense attorneys argue that a federal or state administrative agency or regulatory body has superior jurisdiction and competency to resolve the complaints of aggrieved citizens. Many courts have noted that the doctrine of primary jurisdiction is related to the exhaustion of remedies principle. This article surveys the standards by which federal and state courts evaluate the doctrine of primary jurisdiction, noting that these courts evaluate the doctrine under very similar standards. Defendants have invoked the doctrine with mixed success; and courts do not always defer to administrative or agency jurisdiction.

Keywords: Rule 23, federal Rule of Civil Procedure 23, class actio litigation, primary jurisdiction, Rule 12(b)(6), deference to administrative agencies, defense to class actions, defense to class certification